Vermont Law School

Faculty Accepted Paper

The Emerging Practice of Global Environmental Law

Professor of Law
Vermont Law School 164 Chelsea St. Box 96 South Royalton, VT 05068 tyang@vermontlaw.edu

Tseming Yang

Vermont Law School Paper #06-12

Electronic copy available at: http://ssrn.com/abstract=1975653

environmental law practice. international environmental legal norms and principles are now penetrating deeper into national legal systems and environmental treaties are increasingly incorporating or referencing national legal norms and practices. Key words: Global environmental law. This essay describes how domestic environmental law practice is increasingly informed by international legal norms. ecological pressures on our planet have grown more acute.Forthcoming in “Transnational Environmental Law” 12-20-2011 The Emerging Practice of Global Environmental Law Tseming Yang Abstract Since the 1972 Stockholm Conference on the Human Environment. creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. legal convergence 1 Electronic copy available at: http://ssrn. Yet. With the paths of international and national environmental law becoming increasingly intertwined over the years. while the effective practice of international environmental law more and more requires enhanced awareness and even understanding of national environmental regulatory and governance systems. modern environmental law has also continued to evolve and spread within international as well as among national legal systems. The shifting legal landscape is also changing contemporary environmental law practice.com/abstract=1975653 . It illustrates these trends with the historical role and work of US EPA’s Office of General Counsel.

Russell Smith. United States. Diane McConkey.com/abstract=1975653 . Email: Yang. Tom Swegle.gov I am grateful for comments and assistance by Joseph Freedman. Jessica Scott. The views expressed in this essay do not necessarily represent the views of the US Environmental Protection Agency or the US Government. DC. † 2 Electronic copy available at: http://ssrn. VT. Washington. on leave from Vermont Law School.Forthcoming in “Transnational Environmental Law” 12-20-2011 The Emerging Practice of Global Environmental Law Tseming Yang† Deputy General Counsel. David Gravallese. Katherine Nam. US Environmental Protection Agency. Daniel Magraw. South Royalton.Tseming@epa.Scott Hajost. United States. and Steve Wolfson in the preparation of this essay.

The associated convergence and integration trends have led to the ongoing crystallization of global environmental law -.R..pdf. 2. 1-11. Yang & R.2 One example of a common and widely accepted global environmental norm is the environmental impact assessment (EIA) duty.org/insights100422.cfm.1 In this essay. Payne. international.asil. proliferation of international environmental instruments. the launch of the journal Transnational Environmental Law is a timely development. Uruguay). in many international environmental instruments. Percival.V. and at times even foreign environmental norms.3 See generally T. ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly. case comment by C. 1 3 . but rather transnational and global in nature. GLOBAL ENVIRONMENTAL LAW Global environmental law appears to be the product of globalization. available at http://www.icj-cij. The first part of this essay will describe how domestic environmental law practice is increasingly informed by international legal norms. this new journal recognizes that description and analysis of the two fields in isolation fails to appreciate not only their reciprocal influence but also the rise of norms that are neither purely domestic nor international. primarily from the perspective of an American government lawyer. I describe how some of these developments are becoming visible in contemporary environmental law practice. As the paths of international and national environmental law have become increasingly intertwined. The second part of this essay will illustrate these propositions with the work of US EPA’s Office of General Counsel (OGC). 2 Ibid. ‘Pulp Mills on the River Uruguay: The International Court of Justice Recognizes Environmental Impact Assessment as a Duty under International Law’ (2010) 14(9) American Society of International Law Insight. available at http://www. 2010). these pressures have prompted nations to develop and reform existing national and international environmental law systems. 3 See generally ibid. The journal will provide an important forum to study the growth and expansion of what Robert Percival and I have referred to as the emergence of global environmental law.Forthcoming in “Transnational Environmental Law” 12-20-2011 1. 178-80 (Judgment of 20 Apr. pp. For recent developments with respect to EIA as a transboundary duty. which now can be found in the great majority of national environmental law systems. development aid focused on the rule of law.a common set of environmental legal principles and norms in national. and even as a transboundary norm. while the effective practice of international environmental law more and more requires enhanced awareness and even understanding of national environmental regulatory and governance systems.org/docket/files/135/15877. pp 615-64. and fundamentally similar public health and ecological needs transcending national borders. and transnational law that are utilized to protect the environment and public health as well as to manage and conserve natural resources. para. Across the earth. INTRODUCTION With the 40th anniversary of the 1972 Stockholm Conference on the Human Environment coming up in June 2012 and last year’s 40th anniversary of the United States (US) Environmental Protection Agency (EPA) just behind us. see the International Court of International Court of Justice (ICJ) ruling in Pulp Mills on the River Uruguay (Argentina v.

has enacted around two dozen pollution and resource-related statutes. law transplantation. Globalization has increased international business transactions. awareness of international and relevant foreign environmental laws. requires not only a good understanding of US environmental law and regulations but also. 3. In many respects. are crucial to the successful implementation of multilateral environmental agreements has created a similar need for international environmental lawyers with respect to national laws. the United States’ dualistic system often requires an additional step of legislative incorporation. Similarly. have dramatically changed the regulatory landscape at the international. which started out with just a general environmental framework statute in 1989. Art. Conversely. have expanded and transformed many environmental norms. Senate advice and consent under the US Constitution’s treaty clause. these developments have become increasingly relevant to the actual practice of environmental law. national and subnational level. They are increasingly called upon to provide transnational legal services such as due diligence review of compliance by a potential foreign corporate merger partner or supply-chain contractors or to assist with potential litigation in foreign jurisdictions. 5 US Constitution.5 The extra incorporation step has generally been applicable to environmental treaties because they 4 For example China. delivery of effective environmental legal services. and harmonization of norms at the national level. In short. II. the divide between US and international environmental law. including those of developing countries and emerging economies.2. traditionally seen by American lawyers as distinct areas of law.Forthcoming in “Transnational Environmental Law” 12-20-2011 In recent years. For government lawyers and members of the regulatory compliance and enforcement bar.4 Increasingly. Art. para. international lawyers working on environmental treaties rarely ventured into the details of how environmental law and regulation worked within the US or other national systems. 2. has blurred significantly over the past couple of decades. preferring to outsource such questions to domestic lawyers or to assume away its relevance for their work. Unlike in monistic countries. 4 . that shift has been more subtle. Domestic lawyers have learned more about foreign environmental regulatory systems in order to enhance their ability to counsel on transactions as well as to manage unfamiliar legal exposure and risk that come with doing business in foreign jurisdictions. the field was largely considered a specialty area within public international law. where international law and treaties automatically become part of the national legal order. growing recognition that national regulatory systems. enormous efforts of law reform. 2. Adoption of new multilateral environmental agreements on subjects ranging from climate change to biodiversity to chemicals and fisheries. internationalization of its environmental practice has come slowly but steadily and with practical consequences for the bottom line. thereby raising demand for associated legal services. In addition. at a minimum. generally outside of the expertise (and relevant scope of practice) of US environmental lawyers. VI. as well as subsidiary protocols. sec. INTEGRATION AND CONVERGENCE IN THE PRACTICE OF INTERNATIONAL AND NATIONAL ENVIRONMENTAL LAW For the private bar providing legal services to multinational businesses. When I first became engaged in the practice of international environmental law as a government lawyer in the mid-1990s. that is likely attributable to the dualistic system of the United States. especially to clients operating in the global markets. para.

7 Title VI of the Clean Air Act (CAA). Compliance monitoring is probably the most obvious. 9 CAA section 614. 8 Montreal (Canada). questions about the interaction of domestic and international requirements are not necessarily straight-forward.S. penetration of international law norms and principles deep into national legal systems. incorporation of national legal norms and practice into treaties. globalization of environmental law practice.C. section 102(a).imo. under the MPRSA.unep.8 goes one step further in qualifying some of its provisions with the phrase ‘to the extent consistent with the Montreal Protocol.org.C. While some MEA commitments are framed explicitly as relatively easily observable international acts of national governments. One manifestation has been direct incorporation or reference of treaty requirements in national environmental laws. including its Annexes’. and widely varying time tables. in force 30 Aug. rising levels of international environmental cooperative activity and growing linkages with national implementing activities have also created a greater need for international lawyers to become more familiar with the operation and requirements of national environmental law systems.’9 Thus. 13 Nov. 33 U. 42 U. 16 Sept.org/new_site/en/montreal_protocol. 7 MPRSA. ‘the more stringent provision shall govern. Given the complexity of the international ODS phase-down scheme. However. which implements the Montreal Protocol on Substances that Deplete the Ozone Layer. Research.’ In case of conflict between the Act’s stratospheric ozone provisions and the treaty. both government lawyers and the private bar must understand not only the relevant provisions of the CAA and regulations promulgated by EPA but also the currently applicable requirements of the Montreal Protocol. Accordingly. 1972. with respect to ocean dumping permit criteria. 1987. With regard to ozone depleting substances (ODS).sources of law that are familiar and easily accessible to American lawyers. 7671m. in force 1 Jan. the Marine Protection.php. engagement in best efforts to achieve environmental outcomes. 1975. For example.Forthcoming in “Transnational Environmental Law” 12-20-2011 are usually deemed non-self-executing. 5 . London (UK). 6 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. Direct practical effects on national law have increased. and accelerating trends of integration and convergence have changed the legal landscape significantly. increasingly. agency lawyers examine the evolving requirements of the London Convention and its Annexes in order to ensure that EPA regulatory requirements are at least as stringent as the relevant standards and criteria in the Convention. or even control of private party behavior. and Sanctuaries Act (MPRSA) explicitly calls on the EPA Administrator ‘to apply standards and criteria binding upon the United States under the [London] Convention[6]. treaty obligations also reference actions at the national and subnational level – enactment of legislation or regulations. available at: http://ozone.S. Conversely. 1412(a). 1989. broad coverage of many different ODS. as long as statutory requirements are not relaxed. the role of international environmental law per se used to be relatively insignificant for American environmental lawyers since Congressional legislation and agency regulation were usually necessary to create explicit operational requirements in statutes and regulation -. available at: http://www. creating greater needs for domestic law practice to be informed by international law.

institutional arrangements. 5(1). available at: http://www. Rio de Janeiro (Brazil).13 Compliance inquiries of these types face an additional set of challenges when they involve regulatory implementation activities and enforcement practices. such an inquiry becomes even more difficult. that enactment of laws does not in itself ensure effective implementation and enforcement.16 The efforts by many developing countries and emerging economies in recent years to modernize their environmental laws. 16 In the past. 15 Ibid.int/convention/text. available at: http://ozone. even adopting some of the world’s toughest environmental standards applied in the US and Europe.15 The agreement thus incorporates into an international agreement an activity that is primarily the subject of domestic regulatory agencies . especially in developing countries. As a result. available at: http://www. ‘Foundations of Sustainability’ (2011) 28(6) Environmental Forum. implementation. Fulton & A.11 Similarly. attention and energy on international environmental issues has largely focused on the development of new legislation and norms. implementation mechanisms. 22 Mar.effective enforcement of environmental laws. Governance institutions in many such countries are still evolving and not as robust as in most of the industrialized world.ca. 1988. in force 29 Dec. 10 Convention on Biological Diversity. in force 22 Sept. 1985. 2(2)(b). 11 Convention on Biological Diversity art.unep. even though heavily qualified and conditioned. Benjamin. Sept. 1994. 32-6. the requirements of the ozone treaties call on parties not only to ‘adopt appropriate legislative and administrative measures’12 but also to phase out or reduce the industrial production of various ozone-depleting substances.. Examination of applicable legislative and regulatory text alone is insufficient for discerning compliance. regulating or managing biological resources. An understanding of the actual regulatory implementation and enforcement practices is crucial. When the national environmental laws and practices of countries with poorly developed legal and regulatory systems are implicated. the 1994 North American Agreement on Environmental Cooperation (NAAEC)14 requires a party to ‘effectively enforce its environmental laws and regulations through appropriate government action’ and subjects it to the Agreement’s Article 14 Submissions process.cbd. and accountability and enforcement processes (including judicial and administrative review) necessary for effective environmental protection. 1993. such as establishing protected areas. However.org. pp. 14. commitments under the Convention on Biological Diversity (CBD)10 explicitly call on parties to take particular types of actions that are traditionally deemed to be domestic in nature. Art. 6 . has consequently not disposed of the compliance question. 13 Montreal Protocol passim. enforcement and effectiveness of environmental laws and regulations remain a work-in-progress. and protecting ecosystems. 12 Art. See generally S. including the appropriate exercise of enforcement discretion.gc. Vienna (Austria). 14 US-Canada-Mexico. the experience in the past few decades has shown. Increasing adoption of implementation monitoring and compliance management mechanisms in modern MEAs have made such inquiries even more important. For example. 5 June 1992. 8.naaec. The wide gulf between law-on-the-books and law-in-action in the systems of many developing countries and emerging economies means that compliance evaluation requires an understanding of the effectiveness of national environmental governance – the system of environmental laws.Forthcoming in “Transnational Environmental Law” 12-20-2011 For example. Vienna Convention for the Protection of the Ozone Layer.

The trend has been driven by the practical needs of supporting the international environmental interests of the United States and an evolving understanding of the adverse impacts on human health and environmental quality by pollution and irresponsible use of toxic chemicals outside of the United States as well as inside its own territory. 18 National Research Council. available at: http://www.org/documents/index. 108-9. 117 (2010). for granted. For example. Global Sources of Local Pollution: An Assessment of Long-Range Transport of Key Air Pollutants to and from the United States (National Academies Press. For OGC. and so has the Agency’s involvement. It also illustrates how government lawyers who have traditionally focused primarily on US environmental law have had to acquire familiarity and expertise in international and transnational law as part of their evolving practice and client needs. Such a legal practice is still relatively uncommon. at pp. 7 .’ 4. However. The great majority of OGC work. Robust governance systems at the national level are indispensible for designing and effectively implementing MEAs and other international environmental commitments. including in Department of State-led negotiations of international environmental instruments and their implementation. focuses on domestic environmental issues. in order to help strengthen national governance systems. Finally. Statute of the International Court of Justice. is driving the evolution and potential emergence of norms that could eventually come to be viewed as ‘general principles of law. including commitments negotiated at the international level. and transnational environmental law work. especially through transplantation and adoption of environmental law norms and regulatory mechanisms in developing countries and emerging economies.Forthcoming in “Transnational Environmental Law” 12-20-2011 These examples illustrate that one cannot take the effectiveness of legal norms. These in turn will require the efforts of experienced environmental lawyers and regulators to share best practices. 2010). national environmental laws and practice are themselves increasingly influencing MEAs and international law practice. the practice of global environmental law entails a mix of domestic. especially with regulators and lawyers in the developing world and emerging economies. consistent with the bulk of the Agency’s overall work.php?p1=4&p2=2&p3=0.18 Even inappropriate application of pesticides to food 17 Art. 38. the international dimension of environmental issues has grown. but it is spreading. state practice influences the interpretation and application of MEAs as well as the emergence of new customary international law principles. For example.icjcij.17 And rapid development of national environmental governance systems across the globe. international. ONE FACE OF GLOBAL ENVIRONMENTAL LAW PRACTICE: EPA’S OFFICE OF GENERAL COUNSEL One illustration of the growing interconnection between national and international environmental law can be seen in the law practice of EPA’s Office of General Counsel (OGC) as well as other agencies and organizations. persistent organic compounds and other pollutants from sources an ocean away contribute to the deposition of harmful pollutants in the United States. various studies indicate that transboundary movement of mercury emissions.

use of toxic substances like lead paint to make children’s toys. social and political stability is enhanced and global security is ultimately strengthened. such as the atmosphere or the oceans. engineering and health. Its broad commitment to public participation. have greatly increased the need for associated legal counseling and support.20 These developments. environmental engagements with other governments and international organizations can also advance international cooperation and diplomacy more generally. affirming the agency’s long-standing commitment to international engagement. and 6) Cleaning up hazardous e-waste. Furthermore. especially proliferation of environmental agreements and environmental chapters of trade agreements. work on a range of other international matters continues as well. 4) Expanding access to clean water. and government agencies are reduced or competition for scarce natural resources is lessened. or the manufacture of lawn mowers and other consumer products failing to conform with US emission standards can affect the United States when global commerce leads to their importation and sale to American consumers. 8 .Forthcoming in “Transnational Environmental Law” 12-20-2011 crops. and expertise in best environmental practices. Applying domestic environmental enforcement system to imports at ports and border crossings can be a first line of defense against some of these challenges. Of course. By sharing its decades of experience in environmental law. primarily through bilateral technical assistance. 2) Combating climate change by limiting pollutants. sharing the lessons of the US experience and otherwise helping to build national environmental governance systems abroad can make pollution havens less likely to emerge and provides businesses operating globally with a more level playing field. science. and provides environmental leadership by example. environmental justice. The same is true for ecosystems that extend outside of the United States or migratory species that spend part of their life-cycle abroad. With respect to environmental challenges that involve the global commons. However. Recognition of the interconnected nature of national interests in protecting human health and the environment and international environmental concerns motivated articulation of EPA’s top international priorities in 2010. 20 It is worth noting that environmental efforts by the developing world and emerging economies are as much. 5) Reducing exposure to toxic chemicals. Preparation of implementing legislation and regulations as well as counseling on how the ongoing activities of international organizations and multilateral 19 The priority areas laid out for the agency focused on: 1) Building stronger environmental institutions and legal structures. helps build goodwill.19 The Agency’s commitment to ‘building stronger environmental institutions and legal structures’. most are often more effectively addressed through international cooperative activities. 3) Improving air quality. if not even primarily a response to increasing calls by their own citizens to address serious environmental challenges in the developing world. as they are responses to outside pressures. is a direct recognition that ineffective environmental law and governance in other countries creates direct or indirect adverse consequences for the United States because it can hinder efforts to solve US environmental problems. pollution victims. EPA has built strong and positive relationships with governmental counterparts in other countries. When local or regional conflicts between polluters. and the rule of law resonates with environmental professionals and advocates throughout the world. Apart from human and environmental benefits. international cooperation is vitally necessary to prevent national efforts from being undone by pollution elsewhere.

and multilateral level as well as work in international organizations and meetings. It also assisted EPA in interagency processes related to international environmental law and policy. but focused on the international law needs of the Agency. In its international work. made up of four staff lawyers and its leader. transboundary air pollution. leadership of the Division subsequently came from the legal academy. OGC also works closely with individual media programs such as the Air and Radiation Office with regard to its work on international ozone depletion. regional. the Office of Water with respect to ocean and other transboundary water pollution issues. After Hajost left EPA for the Environmental Defense Fund in 1990. in 2008. Further support comes from lawyers based in OGC’s media law offices and Regional Counsels’ offices. was merged with another law office into a combined entity. it reported directly to the General Counsel.Forthcoming in “Transnational Environmental Law” 12-20-2011 environmental agreements affect the Agency’s operations and obligations are just a few such needs. to advance the Agency’s international engagements as well as its domestic implementation activities. a former senior lawyer from the State Department’s Legal Advisor’s Office. the International Environmental Law Practice Group (IELPG). It was then led by an Associate General Counsel and Deputy Associate General Counsel and included six staff attorneys. an Assistant General Counsel. There it remains a specialized practice group. and the Office of Solid Waste and Emergency Response regarding international hazardous waste trade issues. contributing EPA’s unique environmental and public health interests. such as the Office of International and Tribal Affairs. including the 9 . including environmental agreements. under the Obama Administration. During the George W.which generally coordinates international work within EPA and focuses on cross-cutting matters. OGC works closely with a number of internal client programs. OGC works with the entire range of federal agencies involved in international issues. OGC informally created an International Activities Division. Bush Administration. led to the appointment of a Deputy General Counsel to provide leadership for EPA’s overall international environmental law needs. The Agency’s effort leadership to re-elevate OGC’s international environmental law practice in 2010. formally launched in 1991. Externally. former University of Colorado law professor Daniel Magraw. Like other law divisions within OGC. experience. and climate change issues. as it was then named. Beginning in 1989. Professor Edith Brown Weiss of Georgetown Law School and her successor. Prompted in part by the preparations for the 1992 Earth Summit and Administrator Bill Reilly’s particular interest in international environmental issues. who became President of the Center for International Environmental Law (CIEL) in 2001. and mission to United States participation in the negotiation of international legal instruments at the bilateral. OGC’s International Activities Division was initially headed by Scott Hajost. shrunk in staff size and then. the Cross Cutting Issues Law Office. the International Environmental Law Office. As a practical matter. Its function was then described as counseling EPA on international environmental law. headed by a single Associate General Counsel. the Division’s responsibilities and structure mirrored that of the other divisions within OGC. that has required closely working with the IELPG as well as other practice areas with issues related to international environmental law.

the National Oceanic and Atmospheric Administration.23 Since the TunaDolphin case under the WTO’s predecessor. 10 .gov/greatlakes/glwqa/1978/index. consists of counseling EPA on international environmental activities and representing its legal interest in interagency processes and international negotiations from the perspective of its particular public health and environmental mission. Some provisions in existing US environmental statutes anticipate future international 21 See for details on the mercury treaty negotiation process. Congressional mandates. superseding the 1972 Agreement.S. available at: http://www. 1978. 1978. diplomats have made it a negotiation position that no new congressional authority will be sought for a new international instrument. Such counseling is designed to ensure that the United States can take actions and make policy judgments with a sound appreciation of applicable international law principles and EPA’s statutory authorities. such as ongoing discussions to create a global legally-binding mercury treaty. EPA has actively sought to ensure that new trade agreements do not adversely affect its domestic regulatory authority nor impair environment and public health. http://www. the General Agreement on Tariffs and Trade (GATT). OGC’s present-day work continues its long-standing role of providing international environmental law expertise for the agency’s activities. e. Finally.org/hazardoussubstances/Mercury/Negotiations/tabid/3320/Default. OGC’s analysis in such situations helps determine whether new international commitments can be implemented under existing statutory or regulatory authority or whether new Congressional legislation or regulatory changes are needed. as well as EPA’s counterparts in other countries such as the Brazilian Ministry of the Environment and China’s Ministry of Environmental Protection. the US Trade Representative’s Office.21 or bilateral ones.aspx 22 (Ottawa (Canada).22 Ensuring that new international commitments do not inappropriately conflict or otherwise hinder EPA in implementing its mission to protect human health and the environment. in force 22 Nov. such as the United Nations Environment Programme (UNEP). 22 Nov.epa. OGC’s work is crucial in the US implementation of international treaties. such as a Transpacific Partnership designed to expand and liberalize trade among a number of Pacific nations. an understanding of existing domestic legal authority is crucial to steering international negotiations. Particularly. whether through regulatory revisions or by new legislation.ustr.gov/tpp. Most counseling work arises in the context of ongoing multilateral negotiations. and its distinct mission within the federal government to protect public health and the environment. Identification of legal authority gaps or needs for regulatory clarification allows for legislation and regulatory changes to be crafted.. OGC has assisted EPA’s bilateral work with international organizations. In addition. such as efforts to revise the existing US-Canada Great Lakes Water Quality Agreement.g.html. 23 Further information available at: http://www. The bulk of OGC’s international work. possibly because obtaining new legislation might be a serious challenge.Forthcoming in “Transnational Environmental Law” 12-20-2011 Department of State. especially IELPG’s. has been especially important in the context of international trade negotiations. when U. the Coast Guard. and the US Agency for International Development.unep.

section 3017. 15 above. N. 1251 et seq. 31 Coal-fired Power Plants. the Resource Conservation and Recovery Act (RCRA). 1992. 17 Dec. available at: http://www. 1131.php. 35 Washington.27 As noted above. Such capacity-building work has included hosting and participating in workshops sharing the American environmental law experience with foreign government officials and other foreign visitors to EPA each year. however.int/kyoto_protocol/items/2830.24 Oftentimes. 16 above. 10 Dec. 30 Arts.ustr.34 In recent years. 34 For further elaboration on the close connection between effective environmental governance and the rule of law.S.asp?PageID=2001&ContentID=2345&SiteNodeID=545&BL_ExpandID. such as the Montreal Protocol25 and the Kyoto Protocol. existing statutory authorities are deemed to be insufficient for implementation of new agreements. 32 CWA.Forthcoming in “Transnational Environmental Law” 12-20-2011 agreements. filed 16 September 2004. 2005. 42 U. Kyoto (Japan). 33 U. TX (US). 26 Kyoto Protocol to the United Nations Framework Convention on Climate Change. such issues have grown in importance. in force 16 Feb. OGC is also intimately involved in ensuring the Agency’s compliance with international treaty commitments and defending it against allegations of non-compliance. e. raised the question of whether Congressional legislation limiting administrative review falls within the scope of the effective enforcement provision and thus could give rise to an investigation and factual record. article 14 of the NAAEC. pp.C.33 Finally. Coal-fired Power Plants.35 The objective has been to 24 25 See.org/Page. available at: http://unfccc.31 has alleged failures by the United States to effectively enforce the Clean Water Act (CWA)32 with respect to mercury releases. 5.29 allows private individuals to submit allegations that a NAFTA country has failed to comply with its commitment to ‘effectively enforce’ its environmental laws. DC (US). 28 N.nafta-sec-alena.asp?PageID=2001&ContentID=2390&SiteNodeID=544&BL_ExpandID. SEM-04-005. SEM-95-002. available at: http://www. Because some of the modern MEAs. EPA has worked with the US Agency for International Development (USAID) to engage in capacity-building efforts in Central America under the US-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR).org. for example. filed 30 Aug. 6938. 1997. 33 Another submission. Logging Rider. Yang. 1995.g.. 1994. 2004.gov/trade-agreements/free-tradeagreements/cafta-dr-dominican-republic-central-america-fta. ibid. 8 above. See Logging Rider.26 now contain mechanisms that seek to monitor and proactively manage noncompliance issues. In addition to providing counseling. such efforts also advance democratic governance and the rule of law worldwide.30 One pending submission. Potential remedies include an investigation and compilation of a factual record regarding the allegations. 27 See generally T.C. OGC has also supported broader US diplomatic engagements and environmental leadership efforts globally including EPA’s interest in ‘building stronger environmental institutions and legal structures’ abroad.org/Page. 14 NAFTA. in force 1 Jan. Analysis of the allegations has required examination of both US environmental law and US obligations under the NAAEC. Beyond enhancing protection of the global environment by strengthening environmental governance abroad. 11 . see n. 29 San Antonio.28 the environmental side agreement to the North American Free Trade Agreement (NAFTA). 5 Aug.S. available at: http://cec. available at: http://cec. ‘International Treaty Enforcement as a Public Good: The Role of Institutional Deterrent Sanctions in International Environmental Agreements’ (2006) 27 Michigan Journal of International Law.

available at: http://www.org/left_menu/Environmental_Cooperation_Agreement. 18 Feb. It also helps to ensure that trafficking in products illegally taken in other countries. that prohibition was extended to plants and plant products taken. Together with Central American officials. As a result. the Lacey Act makes foreign legal prohibitions regarding fish. tribal. state. transport. sell. tribal or foreign law. transported.39 The Lacey Act has.justice. fishing by US commercial fishermen for albacore tuna off the coast of Mexico without the necessary Mexican permits led to arrest and guilty pleas under the Lacey Act recently. the Act can be used as a tool for helping to conserve wildlife.S. News Release: Commercial Fishermen Plead Guilty to Illegal Fishing and Shooting of Marine Mammals (June 28. export.S.C.C. and plant acquisition and commerce an element of US criminal prohibitions. 41 US Department of Justice. EPA’s OGC is not alone among US federal government agencies in experiencing globalization of its environmental law practice.Forthcoming in “Transnational Environmental Law” 12-20-2011 develop and implement a model wastewater pollution control regulation for the region. or sold in violation of federal.caftadrenvironment. 40 16 U. state. Notable is the Department of Justice (DOJ). available at: http://www. 12 . 1901-1915.37 Of course.40 Through amendments enacted in 2008. a multi-disciplinary EPA team. or purchase in interstate or foreign commerce’ any fish or wildlife that has been taken. which included OGC lawyers. 2011). By referencing foreign law. wildlife. with tangible results: adoption by the Environment Ministers of the model regulation in principle and their effort to integrate it into and implement it in domestic legal regimes in individual countries. or foreign laws that protect plants. receive. 38 16 U. As an outgrowth of the Environmental Cooperation Agreement (ECA)36 that the Parties signed as an adjunct to CAFTA. For example. requiring federal environmental prosecutors not only to possess expertise in US environmental laws but also calling on them to gain an understanding of foreign law requirements regarding acquisition and commerce of natural resources. transported or sold in violation of federal. fish and plants regardless of international borders.pdf.gov/usao/cas/press/cas11-0628- TwoCaptains. for several decades. 2005.41 There is no doubt that the Lacey Act is still unusual. Currently. possessed. the project fostered regional harmonization of the domestic legal and regulatory regimes in each country with the goal of controlling wastewater discharges to surface waters. 3371-3378. DC (US). does not undercut law-abiding U.S. Introduction of legal expert testimony regarding the requirements foreign 36 Washington. acquire. prepared a model law that was adopted by the Environment Ministers of the participating countries by way of an agreement that the regulation would form the basis for national implementing legislation.S. companies who trade in legal forest products. made it illegal to ‘import.pdf 37 US AID has recognized EPA’s effort with its Central American counterparts in developing the model wastewater pollution control regulation as an example of effective environmental capacity building and as a model for other environmental capacity building efforts. which in recent years has acquired an international component in its prosecutorial work through the Lacey Act38and the Act to Prevent Pollution from Ships (APPS). EPA is working with individual Central American countries to integrate the model regulation into their specific legal and regulatory regimes. 39 33 U. such as wood products made from illegally harvested timber. 3372(a). possessed.C.

in force only after the 1978 London Protocol on 2 Oct.cidh. as set out in the International Convention for the Prevention of Pollution from Ships (MARPOL).org/about/conventions/listofconventions/pages/international-convention-for-the-prevention-ofpollution-from-ships-(marpol).oas. a 2006 prosecution under the APPS for violation of MARPOL prohibitions against discharge of oil-contaminated waste resulted in a $37 million penalty against one shipping company. largely independent of each other.43 While both statutes are unusual in their reference to or incorporation of foreign and international norms.Forthcoming in “Transnational Environmental Law” 12-20-2011 environmental laws has not been uncommon in such cases and is advancing the practice of global environmental law even among federal prosecutors.html. for some years now.S. private firms are increasingly engaged in investorstate dispute processes.justice. For environmentalists. they are targeted at one of the fundamental challenges of international environmental problems – limited jurisdictional reach of most environmental laws even though environmental problems are increasingly transnational and global in nature. 1350. the interconnectedness of the environment is a tenet that has connected the global to the local and the foreign to the domestic environment. The evolving practice of environmental law described here illustrates how the growing interlinkage between national and international legal systems and norms is put into operation. 1973.C. appears to be significant.C. including the interactions of such businesses with foreign environmental regulators and other government officials. 44 15 U. Examples of such instances are growing. Similarly.aspx. Counseling on the implications of the Foreign Corrupt Practices Act (FCPA)44 for the environmental activities abroad of US-based corporations. 2 Nov. 43 US Department of Justice. And environmental NGOs are increasingly utilizing fora such as the Inter-American Commission on Human Rights (IACHR)45 to raise environmental claims or tools such as the Alien Tort Claims Act (ATCA)46 to bring environmental human rights issues before American courts. available at: http://www.S. there are also increasing occasions for non-governmental organizations (NGOs) and the private sector to be engaged in the practice of global environmental law. Today’s emerging 42 London (UK). 78dd et seq.gov/opa/pr/2006/December/06_opa_849. News Release: Overseas Shipholding Group Inc. and we can expect that trend to continue and accelerate in the coming years. 13 . available at: http://www. specifically prohibitions against waste disposal from ships. CONCLUSION In the past. Will Pay Largest-Ever Penalty for Concealing Vessel Pollution. Beyond the federal government. 46 28 U. involving environmental issues. such as under Chapter 11 of NAFTA. The APPS also incorporates non-federal law norms. there has been a trend for international frameworks to increasingly reference national legal norms and for national systems more and more to incorporate international norms. 45 See at: http://www.imo. international and national environmental law were often thought of as parallel systems.org.42 For example. 1983. The design of these statutes overcomes some of these challenges. However. 5.

14 .Forthcoming in “Transnational Environmental Law” 12-20-2011 practice of global environmental law demonstrates that this fundamental axiom applies not only to the physical environment but increasingly our environmental regulatory and governance systems – humanity’s institutional environment.

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